FIRST DRAFT-----PLEASE DO NOT CIRCULATE OR CITE (this is only for conference participants) May 3, 2013 DCC International Conference 4/22/13 Dr. Jaime Lluch, Visiting Post-Doctoral Fellow in Democracy, Citizenship, and Constitutionalism, Political Science Department, University of Pennsylvania, USA
[email protected] Constitutional Moments and the Paradox of Constitutionalism in Multinational Democracies (Spain, 2006-2013) The Paradox of Constitutionalism Most formulations of the paradox of constitutionalism are based on the observation that at times there can be a collision between constituent power and constitutional form, or a clash between politics and law, or between democracy and constitutionalism. Such a collision can lead to a clash of legitimacies between an established constitutional form and the constituent power represented by the democratic will of a people in a well-defined territory. Moreover, modern constitutions often aim not only to establish a form of governmental authority, but also to “reconstitute the people in a particular way. The notion of a constitutional identity of a people, and particularly its relation to the constituent power possessed by the people, is perplexing” (Walker and Loughlin 2007: 1). There is the suggestion, in the first place, that to the degree that there are “natural” units of “peoples,” constitutional texts can reshape and mold these “natural” boundaries between “peoples.” Political identities can thus be “constitutionalized,” given that there is some space for malleability and fluidity, but, conversely, constitutional form itself is not unchallengeable (Walker and Loughlin 2007: 2). Therefore, “if the influence of constitutional form lies in its ability to refine the meaning and import of collective political identity, its authority must nevertheless in some measure depend upon its continuing capacity faithfully to reflect that collective political identity.